While the case at hand dealt with the issue of trade-mark confusion, Mr. Justice Rothstein, writing for a unanimous Court, emphasized that the Court’s decision respecting the use of experts applied generally. Of note, the Court suggested that the issue of the admissibility of expert opinion evidence should be considered at the trial management phase of a legal action in order in order to eliminate the expense of calling expert witnesses at trial only to have their opinions ruled inadmissible.

Mr. Justice Rothstein wrote:

(1) The Judge’s Role in Controlling the Admission of Expert Evidence

[75] Tendering expert evidence in trade-mark cases is no different than tendering expert evidence in other contexts. This Court in R. v. Mohan, [1994] 2 S.C.R. 9, set out four requirements to be met before expert evidence is accepted in a trial: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. In considering the standard for the second of these requirements, “necessity”, the Court explained that an expert should not be permitted to testify if their testimony is not “likely to be outside the experience and knowledge of a judge”:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury”: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. [p. 23]

[76] In light of the relatively extensive expert evidence in this case, and the difficulties with the evidence that I discuss below, I think it is timely to recall that litigation is costly. Courts must fulfil their gatekeeper role to ensure that unnecessary, irrelevant and potentially distracting expert and survey evidence is not allowed to extend and complicate court proceedings. While this observation applies generally, I focus particularly on trade-mark confusion cases, which is the subject of this appeal.

[77] If a trial judge concludes that proposed expert evidence is unnecessary or irrelevant or will distract from the issues to be decided, he or she should disallow such evidence from being introduced. I will also suggest that proposed expert and survey evidence be a matter for consideration at the case management stage of proceedings so that if such evidence would not be admissible at trial, much of the cost of engaging experts and conducting surveys may be avoided…

Rule 12-2 of the Supreme Court Civil Rules provides our judges the opportunity to exercise their gatekeeper role prior to trial. A judge presiding at a Trial Management Conference may consider and make orders respecting the use of experts at trial, whether or not a party brings an application in that regard.